A letter written by the Chief Ombudsman reveals disturbing questions about its relationship withthe Corrections Department

The death of Jai Davis in 2011 has highlighted critical deficiencies in the management and nursing culture at the Otago prison. Now there’s an even wider concern. Documentation has come to light showing the Ombudsman allowed Corrections, albeit unintentionally, to cover up the circumstances surrounding his death which implicate management and nurses at the prison.

This is how it happened. When a prisoner dies suddenly from an unexpected death, there are likely to be at least three different investigations – one by the Corrections Inspectorate, which is monitored by the Ombudsman; one by the Police, which may be monitored by the IPCA (if there’s a complaint); and finally one by the Coroner. Each investigation has a different focus. The role of the Inspectorate is to determine whether any Corrections procedures or protocols were breached, and whether any prison officers should be disciplined. The Inspector also makes recommendations to the chief executive to prevent it happening again.

Corrections Inspector David Morrison’s report

Responsibility for investigating Jai Davis’ death on behalf of the Corrections Inspectorate was given to David Morrison. While interviewing prison staff about the circumstances, he was accompanied by a representative from the Ombudsman’s office. The Ombudsman’s role was twofold: to ensure Mr Morrison did his job properly, and to ascertain whether Mr Davis received appropriate medical care and had been treated humanely while in prison. In other words, the Ombudsman was supposed to ensure the Inspector got to the bottom of what Corrections did right – and what it did wrong.

Mr Morrison never got to the bottom of anything. (Here’s the executive summary of his report.) He was well aware that Acting prison manager, Ann Matenga, had statutory responsibility to advise the Medical Officer that a prisoner had been admitted suspected of having drugs on board – but never held her to account for not doing so. Mr Morrison also failed to make any findings against the nurses, even though they clearly failed to provide Mr Davis with adequate medical treatment. The only staff he made findings against were two officers who made fictitious observations that Mr Davis was snoring in the early hours of Monday morning – by which time he was already dead.

David Morrison’s recommendations

Mr Morrison refused to point the finger at anyone further up the chain of command. His key recommendation was that:

“The Department of Corrections considers establishing a protocol with the Ministry of Health to facilitate the x-ray of a prisoner where it is suspected a prisoner is internally concealing an unauthorised item that in the opinion of the Medical Officer may place the prisoner’s health at risk.”

Corrections already had a protocol in place to manage that situation. It said that when a prisoner is suspected of internal concealment, the Medical Officer is to be advised. The problem is that since the nurses and prison managers ignored the existing protocol, they could just as easily ignore any new protocol. So that wouldn’t be much help. To address that difficulty, Mr Morrison’s second recommendation was:

“All key prison staff and health service personnel are trained and adhere to the requirements under the Prison Service Operating Manual (PSOM)…”

Great – except that Corrections staff are already trained in the PSOM; it’s like the prison officers’ Bible. All they have to do is look it up to see what to do in any given situation.

The nursing culture at Otago prison

The reality is that Mr Davis’ death had nothing to do with a lack of training. It had to do with a lack of compassion and personal responsibility. The nurses who ‘treated’ Mr Davis, but refused to call the prison doctor, were all trained health professionals. They have two Bibles of their own – the Nurses Code of Ethics and the Code of Conduct. These describe the ethical and legal responsibilities that nurses have to their patients, irrespective of Corrections Department protocols. The problem was that the obligations in these Codes do not appear to have been met in Mr Davis' case, consistent with a wider culture of incompetence and indifference that operated in the Otago prison health centre.

The best way to change that culture is for any nurses who are guilty of professional misconduct to face a Departmental employment investigation and be brought before the appropriate disciplinary bodies – which would include the Nursing Council and the Heath & Disability Commission. If the police did their job properly, and prosecuted nurses who were guilty of gross neglect, some of them could also be brought before the Court.

But Mr Morrison made no such recommendation. The reality is that his 44-page report does not hold anyone to account for their failure to call the prison doctor – despite the fact that this was the most significant failure in a succession of negligent acts culminating in Mr Davis’ death. In other words, Mr Morrison’s report was a whitewash.

The Ombudsman’s response

Here’s the crunch. Despite the report’s obvious deficiencies, in September 2011 only six months after Davis died, the Chief Ombudsman, Dame Beverly Wakem (left) wrote to the Chief Executive of Corrections praising the Inspector’s conclusions. She said:

“My investigator monitored the investigation throughout. I have been provided with the Inspector’s final report and… I am of the opinion that the report is fully satisfactory and that the recommendations made by the Inspector are reasonable.”

In hindsight, that endorsement looks increasingly bizarre. At the time it was written, the police had barely begun their investigation. Who knows what crimes they might uncover? Once the police finally finished (three years later), coroner David Crerar, was able to get on with his inquiry. After hearing from 58 witnesses, the shortcomings in Mr Morrison’s investigation were disturbingly obvious and led to heated cross-examination at the inquest.

The inquest also highlighted the inadequacies of the police investigation (which led to three complaints to the IPCA), as well as the shoddy treatment provided to Mr Davis by the nurses and prison managers. The coroner was so concerned at the multitude of mistakes by those responsible, he said he intended to make adverse comments about everyone involved including:

Even the police began to realise they might have got it wrong. On the last day of the inquest, they announced they would review their decision not to lay charges against those involved.

The Ombudsman’s role

Given what we now know about this case, it is hard to understand why the Ombudsman would so quickly, and naively, jump to the conclusion that the report by Corrections Inspector David Morrison was ‘fully satisfactory’. The Ombudsman’s role is to look after citizens’ interests in their dealings with government agencies – which includes ensuring that prisoners are not subject to cruel or inhuman treatment. But if Dame Beverley’s monitoring of Corrections means that all she does is send a representative to keep the Inspector company and then endorse his report, she’s not doing her job.

The Ombudsman is supposed to be the citizens’ watchdog. The message this case sends is that the watchdog is little more than a lapdog – one with no teeth.

The reality is that David Morrison’s investigation did not get to the bottom of what went wrong and his recommendations completely missed the mark.

It raises the question of whether Corrections should be investigating its own. Is that trust warranted? Can a Corrections Inspector be expected to thoroughly and dispassionately judge his or her own colleagues, such as prison staff? That's exactly why the Ombudsman is meant to supervise the process – to ensure any such conflicts of interest don't interfere with an honest and comprehensive investigation.

How independent is the Ombudsman?

The Ombudsman is independent, theoretically. She doesn’t work for Corrections. But the picture painted by the inquest now raises questions as to whether her oversight was assertive enough. So here’s a bigger question. Is the lack of sufficient oversight by the Ombudsman in this case typical of oversight into the other 90 unnatural deaths which have occurred in prison in the last ten years?

The answer? Nobody knows, because the prisoners are all dead. And they’re not really in a position to lay a complaint. Even if they were – that wouldn’t help much if the watchdog just sniffs around the Corrections Inspector’s feet, and then goes back to sleep.

Comments (4)

Cushla, That's theoretically true - but while the Ombudsman monitors the performance of Government agencies, no one is monitoring the Ombudsman. Parliamentarians have no idea this kind of thing is going on. If they did know, the first thing they would do would be disestablish the Corrections Inspectorate and create an independent Prison Inspectorate - as they have in Britain.

Thank you Dr Brooking, and apologies for my ignorance. I certainly found it hard to believe what I heard reported about the coroner's enquiry and the whole affair is certainly very disturbing. It sounds like it is up to those of us who are concerned about this to actually speak up just as you do. Thank you for this post.

I am also concerned at the way the police conducted themselves in this case. After they finished their investigation - which took three years - they declined to prosecute anyone. They claimed the evidence didn't meet the threshold 'test' for prosecution. But the so-called evidential test actually doesn't exist.